EKB wins an uphill battle on hotel construction procedural point

Date March 18, 2015

On March 17, 2015, EKB partner David Turner scored a noteworthy victory in opposing a plaintiff’s application to amend their pleadings. Typically, amendment applications are almost always granted unless they are made on the eve of trial or the respondent can show prejudice from the amendment that cannot be compensated in costs. EKB had no such arguments to work with here: the trial had not been set down yet, and our prejudice was largely compensable.

Our successful opposition to the application stemmed from our aggressive defense of the action. Our view was that the plaintiffs’ case had serious problems and we brought a summary trial application for dismissal of the claim against our client, Mr. Michael Babcock, and served it on the plaintiffs. Three days later, rather than answer our summary trial application, the plaintiffs filed an application to further amend to add a claim of unjust enrichment against Mr. Babcock. We opposed the motion to add this new claim on a number of legal grounds, but focused primarily on the tactics of the plaintiffs. The court found that “[r]ather than answering Mr. Babcock’s application for dismissal of their claims against him on the current pleadings, the plaintiffs, through their application to amend their pleadings by adding the claim of unjust enrichment, and the amendments to that application, have endeavoured, as counsel for Mr. Babcock put it, “to move the goal posts on Mr. Babcock.”

The court rejected the plaintiffs’ application to add the claim of unjust enrichment against Mr. Babcock and awarded us costs in any event of the cause.

Pearlman J.’s decision is of interest because it shows the court is following its mandate of providing just, speedy, inexpensive determinations of proceedings. The court saw Mr. Babcock’s aggressive defense to this case and decided that it should not be frustrated by the plaintiffs’ attempts to complicate the case rather than answer the dismissal application. The decision is encouraging to defendants who are looking for speedy dismissals of meritless claims against them.